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Court of AppealDismissedNot stated in judgment

Elsa’s Kopje Limited v Mwendwa (Civil Appeal 624 of 2019) [2025] KECA 725 (KLR)

Court of Appeal of Kenya
2 May 2025
2,708 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that an employer who fires a worker must produce actual evidence of misconduct, or the dismissal is unfair.

What this practically means

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Executive summary

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This is a unanimous judgment of a three-judge bench of the Court of Appeal (Karanja, Gatembu Kairu and Korir, JJ.A) delivered in Nairobi on 2nd May 2025, dismissing an appeal by Elsa's Kopje Limited against a judgment of the Employment and Labour Relations Court (Wasilwa, J.) of 15th October 2019. The respondent, a room steward, was summarily dismissed after he instructed advocates to demand an apology and damages from hotel guests who had accused him of stealing USD 700 - accusations they later withdrew when they found the money. The ELRC found the dismissal substantively unjustified and awarded one month's salary in lieu of notice plus maximum compensation of twelve months' salary. The appellant argued, relying on Mathu v. Intex Construction, that Section 44(4) of the Employment Act is non-exhaustive and that communicating directly with its clients breached contractual and industry standards. The Court agreed the statutory list is not exhaustive, but found the employer pleaded grounds - contract terms, internal regulations, industry practice - without producing any evidence of them at trial, and therefore failed to discharge its burden under Section 43 to prove the reason for termination. On remedies, although the Judge erred in failing to give reasons for the maximum award, applying Kenfreight v. Nguti the Court held the award of about Kshs. 256,730 was not manifestly excessive. The appeal was dismissed with costs to the respondent. The judgment affirms that employers must adduce evidence of the grounds they plead, and that Section 44(4) does not restrict gross misconduct to its enumerated grounds.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the summary dismissal of the respondent was substantively justified
  2. 2.Whether the learned Judge erred in granting the respondent the remedies that she did

Key legal issues

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01

Whether the grounds in Section 44(4) of the Employment Act are exhaustive

Holding

The grounds are not exhaustive; an employer may expand them by regulation, but in this case no such regulations or any evidence of contractual, internal regulation or industry practice grounds were produced.

Reasoning

The Court of Appeal in Geoffrey Gikonyo Mathu v. Intex Construction held that Section 44(4) is non-exhaustive. However, in this case the appellant pleaded gross misconduct based on express and implied contract terms, internal regulations and industry practice, yet produced none of these documents or evidence before the trial court. The pleaded reason therefore remained unproven.

p. 5
02

Whether the employer discharged its burden under Section 43 of the Employment Act to prove the reason for termination

Holding

The employer failed to discharge its burden; the termination was therefore substantively unjustified and the ELRC finding of unfair termination was upheld.

Reasoning

The employment contract was not produced, nor were the internal regulations or evidence of industry practice. No evidence showed the employee required employer concurrence to pursue his legal rights against third parties. The Court accordingly upheld the Judge's conclusion that there was no valid and justified reason for the summary dismissal.

p. 5
03

Whether the remedies awarded (one month's salary in lieu of notice and maximum 12 months' compensation) were justified

Holding

The Judge erred in not giving reasons for awarding maximum compensation, but the award was not manifestly excessive and would not be disturbed.

Reasoning

Relying on the Supreme Court's decision in Kenfreight (EA) Limited v. Nguti, Section 49 of the Employment Act governs remedies for unfair termination, and the discretion is limited to a maximum of 12 months' salary. The Judge's failure to justify the maximum award was an omission, but considering the circumstances of the termination, the total award of Kshs. 256,730 was not so excessive as to warrant appellate interference.

p. 5

Legal principles established

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  • The grounds of gross misconduct in Section 44(4) of the Employment Act are not exhaustive; employers may make regulations expanding the grounds constituting gross misconduct, but must adduce evidence of such grounds at trial.
  • Under Section 43 of the Employment Act, an employer bears the burden of proving the reason or reasons for termination with evidence; failure to do so renders the termination unfair.

Court orders

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  1. 1.The appeal is dismissed with costs to the respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
Employment and Labour Relations Court
Not stated in judgment
Jurisdiction invoked
First appeal to the Court of Appeal from the Employment and Labour Relations Court, pursuant to Rule 31(1) of the Court of Appeal Rules

Relief refused

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Setting aside or reducing the ELRC award of one month's salary in lieu of notice and 12 months' salary compensation

Although the Judge did not give reasons for awarding maximum compensation, the Court found the award not manifestly excessive in the circumstances

p. 5

Costs

The appeal was dismissed with costs to the respondent.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

This list is not exhaustive as Section 44(4) of the Employment Act allows an employer to further make regulations expanding the grounds that may constitute gross misconduct.
p. 4Non-exhaustive grounds of gross misconduct under Section 44(4)
We accordingly uphold the conclusion by the learned Judge that Elsa’s failed to discharge its burden to prove that it had valid reason to terminate Mwendwa’s employment.
p. 5Employer's burden of proof under Section 43
In the end, the appeal fails and is hereby dismissed with costs to the respondent.
p. 5Final orders and disposition

Issues in the judgment

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minor

The quoted passage of Section 44(4) of the Employment Act appears incomplete/truncated in the judgment, breaking off mid-sentence: 'the enumeration of such matters or the decision of an employer to dismiss an employee summarily' employer or an employee from respectively alleging or disputing whether the facts giving rise to the same...'

minor

The case number and neutral citation of this appeal are not stated anywhere in the judgment.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Elsa’s Kopje Limited v Mwendwa (Civil Appeal 624 of 2019) [2025] KECA 725 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/725/eng@2025-05-02

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.